IV
- International Humanitarian Law
1. The Hague Tribunal
Public opinion in Serbia considered the Hague
Tribunal, since its inception, an anti-Serbian institution, unlawful and
created under the US dictate. Co-operation with the Tribunal was
minimal, although the Tribunal's office operated in Belgrade before the
NATO intervention. To date the FRY has not extradited any war crime
suspect. The new authorities are yet to change their position on the
International Tribunal. In the pre-election campaign a pronounced
anti-Hague position was emphasized, and Vojislav Kostunica moreover
frequently stated that in case of his election for the president he
would not hand-over Milosevic. Kostunica told the Valjevo private TV
"Vujic" that the Hague Tribunal "made itself unconstitutional by acting
more like a political than a legal institution, and like an US, rather
than international tribunal." He also told Danas daily: "I shall not
prioritise co-operation with the International Tribunal if I am elected.
I am more interested in survival of community between Serbia and
Montenegro, in view of the manner of justice dispensation by the Hague
Tribunal...Tribunal's officials create privileges for themselves and
live like parasites, feeding on the international community. (Danas,
16-17 September 2000)
In contacts with members of the international
community the president-elect (Kostunica) has not altered his position.
Moreover he kept insisting on other priorities of Yugoslavia. Statements
of Goran Svilanovic, the Foreign Secretary, are quite similar to those
made by Kostunica. In his interview to Radio "Free Europe" on 7 November
2000 Goran Svilanovic said that it was necessary to identify all crimes
and assume responsibility for them. However he focused on the need to
establish so-called truth commissions (on model of Chilean and South
African ones) tasked with establishing truths on the past wars. In
accordance with findings of those commissions persons considered
responsible for the war crimes would be handed over to the Hague
Tribunal. Idea about the truth commission resulted from foreign
pressures, but also from the awareness that punishment of the war crimes
suspects is indispensable for the country interested in being
re-admitted to the international community and its institutions. However
such commission can also represent a mechanism for the delay of key
co-operation with the Hague Tribunal. For example during his visit to
Sarajevo Kostunica told journalists that prior to his apology to
Bosniaks the truth about the past developments had to be established.
The issue of responsibility of Slobodan Milosevic is
being sidelined, although his "sins" towards the Serbian people are
recognized. It is hinted that he might be tried for "the election fraud
and criminalisation of society." Position on other war crimes suspects,
for example Radovan Karadzic, is best illustrated by the following
statement of Momcilo Perisic, former Chief of Staff of the Yugoslav
Army, and currently one of the DOS leaders: "Milosevic ordered me in
1996 to arrest Radovan Karadzic to extradite him to the Hague. After
several days of friendly persuasion Momir Bulatovic and I dissuaded him
from that monstrous idea." (Blic, 2 November 2000)
National strategists are overtly concerned about that
possibility. Kosta Cavoski, professor of Belgrade Law Faculty, says: "If
Milosevic were extradited to the Hague Tribunal he would be tried as a
head of state, which would mean that the whole state would have to
assume responsibility for all his crimes (Politika Ekspres, 20 October
2000). Professor Cavoski most explicitly commented his views on the
Hague Tribunal after Biljana Plavsic's surrender to the Hague: "After
raising the indictment against Momcilo Krajisnik, which was tantamount
to indicting several thousand Bosniak Serbs, it seems that the Hague
Tribunal is determined to stage trials of the entire war leadership of
Republika Srpska, in order to be able to subsequently proclaim their
state, Republika Srpska, a criminal creation, and force its assimilation
into the unitary Bosnia and Herzegovina. In that case, the fate of
Biljana Plavsic, as the war-time Vice President, is also sealed, no
matter how much she tries to comply with all demands of the occupier.
The second possibility is that the Hague investigators and Bosnia bosses
shall try to use Biljana Plavsic for other purposes, not for carrying
out governmental tasks in Republika Srpska, but for "testimonies"
against Radovan Karadzic, Ratko Mladic and Momcilo Krajisnik. And to
achieve that goal she should be first charged, and then under such treat
and pressure, she would be compelled to testify against her war-time
fellow-fighters, to incriminate them and save herself. It would be a
logical outcome, for once a traitor, always a traitor. Genuine analysts
of the US and Western European policy in Bosnia shall be however
surprised by such developments and accordingly ask a question: shall it
be possible to find new "cooperating" leading Serbs in Republika Srpska
after punishment of "more than cooperative Biljana Plavsic" ? Not only
potential traitors in Republika Srpska, but all other Serb politicians
complying with foreign orders shall soon wonder about that possibility.
For servants are sooner or later dismissed, and some even receive a
hanging rope from the Hague." (Glas, 6-8 January)
Only few politicians are demanding extradition of
Slobodan Milosevic to the Hague, notably Dr. Zarko Korac, Vice President
of the FRY Yugoslavia and Sead Spahovic, the Serbian Justice
Co-Minister, and the SRM member. Spahovic stated that Milosevic's trial
in the Hague was our top priority, for "we cannot provide for a
high-quality judiciary, independent judges and prosecutors, let alone
defense, for Milosevic's trial. Added to that we do not have technical
and organizational facilities for evidence gathering, or for protection
of witnesses." (Borba, 1 December 2000) Petition for the arrest of
former FRY President "as it is reasonably believed that he has committed
a series of criminal offences" was launched by the Club of Young Members
of the Serbian Renewal Movement.
The Hague Tribunal rejected the idea of a domestic
trial of Milosevic, as, according to Prosecutor Carla del Ponte,
"Yugoslavia is not and shall not be in a position for many years to hold
a fair trial to Milosevic in line with the Tribunal's indictment and on
charges to be yet filed by the Tribunal ." She mentioned that the
indictment would be expanded to include crimes committed in Kosovo and
in Bosnia and Herzegovina. (Vecernje novosti, 21 December 2000).
International community gave to the new FRY and Serb authorities several
months of "grace period" before piling pressure on them to establish
full co-operation with the Hague Tribunal. Some foreign officials went
as far a to relativise importance of the Hague Tribunal, which caused
sharp responses by the official Croatia, itself under pressure to comply
with the Tribunal's requests, that is to co-operate in investigations
against high officers of the Croat Army. Yber Vedrine, French Foreign
Secretary, stated that "new Yugoslavia would honor its commitments and
try Slobodan Milosevic, but in line with its priorities. My contacts
with Kostunica and other leaders of former opposition have convinced me
that they want Milosevic to be tried for his crimes. But in Serbia."
The Hague Tribunal however tested the new Serbian and
Yugoslav authorities by demanding the hand-over of Milan and Sredoje
Lukic and Mitar Vasiljevic from Visegrad, currently hiding in the FRY.
However the FRY authorities did not respond to that request. Amnesty
International on the anniversary of fall of Vukovar called on President
Vojislav Kostunica to arrest and hand over to the Tribunal, Mile Mrksic,
Veselin Sljivancanin and Miroslav Radic, former YA officers indicted for
war crimes committed in the wake of fall of Vukovar, in 1991. There was
no response to that appeal either. The Hague Tribunal also criticized
Milosevic's re-appearance on the political scene by stating that "giving
air-time to someone indicted for war crimes by an international body, is
simply incredible." (Vecernje novosti, 27 November 2000)
Yugoslav and Serb elites make great efforts to devise
a strategy which would successfully counter pressures for extradition of
Slobodan Milosevic and other Yugoslav citizens, the war crimes suspects.
They also count on different policy of the Bush Administration. Ljiljana
Smajlovic, NIN's commentator, (28 December 2000) thinks that "it is very
likely and favourable for us that the new US Administration shall in all
likelihood be a violent opponent of the newly-established International
Criminal Court (ICC) for War Crimes." Her main argument is: "the Senate
hawks urging immediate hand-over of Slobodan Milosevic, are even against
a mere idea that any US citizens could fall under the ICC jurisdiction."
Future Prime Minister of Serbia, Zoran DJindjic,
announced that the new republican government would set up a commission
of independent jurists to probe into all cases on the Hague indictment
list. According to the NIN commentary this is an excellent tack to the
problem, while US Serb Obrad Kesic, suggests that Yugoslavia rallies and
engages a group of prominent international experts with some experience
of the Hague Tribunal to analyse from an exclusively legal point of view
actions of the Tribunal. The idea is to send that analysis to the US
Administration and the UN, binding them to respond to any criticism or
complaint. It is obvious that the strategy of Serb nationalists is to
relativise responsibility for the past events. Only in such a light
their arguments that "the truth is yet to be established" should be
interpreted. What is also a conspicuous development is the publishing of
new books espousing and promoting the aforementioned stands. Those books
re-hash arguments used for fanning the wars and used them in their
'beautified' form to relativise all the past armed conflicts. The focal
point of all those editions is the idea of 'the Serb victim', suffering
of Serbs in the WWII and injustices of the Communist regime, imposed by
Tito and Croats. In those terms most illustrative is this statement of
Dusan Batakovic: " in Serbia in 1944 more than 80% of population were
favoring the Movement of General Draza Mihajlovic...communist broke the
backbone of Serbia." Renowned historian Milorad Ekmecic even argues that
"antisemitism was supplanted with Serbphobia, which is in fact, an
extension of Russophobia."
Co-operation with the Hague Tribunal is of key
importance for the moral recovery of Serb society. It also represents a
point of crystallization and differentiation around which revolves the
issue of facing up to responsibility for a decade-long war policy of the
Belgrade regime. Politicians and intellectual elite do their utmost to
relativise their responsibility. The new authorities have joined in such
efforts. In view of a relatively small potential of the Serbian society
for tackling that issue, the Hague Tribunal may play a important role in
the future developments by encouraging a self-examination process.
2. Trials before the Hague Tribunal
In the course of the year 2000 on the basis of the
Hague Tribunal's indictment five Serbs were arrested: Mitar Vasiljevic,
charged with crimes against humanity in1998; Dragoljub Prcac in 1995
indicted for crimes against humanity committed in Omarska detention
camp; Momcilo Krajisnik, accused of genocide and all crimes within the
Tribunal's competence in 2000; Dusko Sikirica, in 1995 accused of the
genocide committed in detention camp Keraterm in the vicinity of
Prijedor, and Stevan Nikolic, in 1994 charged with crimes against
humanity committed in detention camp Susica in Eastern Bosnia. During
attempted arrest of Janko Janjic, indicted for crimes against humanity
and violations of war laws and customs in 1996, Janjic committed
suicide.
There were four trials in the Hague Tribunal in the
course of the year 2000. Miroslav Kvocka, Miloica Kos, Mladja Radic,
Zoran Zigic and Dragoljub Ignjatovic stood trial on charges of
commission of crimes against humanity filed in 1995 ( Prijedor camps).
General Radoslav Radic was tried for genocide committed in Srebrenica
(indictment against him was raised in 1998). Dragoljub Kunarac, Radomir
Kovac and Zoran Vukovic, are awaiting sentences on the basis of the 1996
indictment charging them with crimes against humanity and gang rapes in
Foca. Milorad Krnjojelac is being tried on the basis of the 1997
indictment for crimes against humanity committed in the correctional
facility in Foca.
Dusko Tadic convicted of crimes against humanity
committed in Prijedor, in 1992, was sentenced (the second-instance
ruling) to 20 years in prison.
Seal was taken off the indictment against Milan and
Sredoje Lukic (still at large) and arrestee Mitar Vasiljevic. They are
charged with crimes against humanity ( ethnic cleansing) and other
crimes committed in the area of Visegrad in 1992. The indictment was
unsealed to clear the way for Lukic's arrest, who, according to some
leads, is hiding in Serbia.
a. Trial of Stevan Todorovic
Stevan Todorovic, nicknamed "Steve" or "monster" is
one of six persons indicted for war crimes committed in 1992 and 1993 in
Bosanski Samac. First indictee, Slobodan Miljkovic, called Lugar, was
killed in summer of 1998 in Kragujevac, where he had lived after the
war. Second indictee Blagoje Simic is at large. Simo Zaric, Milan Simic
and Miroslav Tadic are free, having being released in the late May 2000
thanks to the Republika Srpska guarantees. Their trial is pending.
Stevan Todorovic has been in the Hague Tribunal since
27 September 1998. Indictment "Miljkovic and others" was raised on 21
July 1995. The indictment reads: "Serb military forces from Bosnia and
other parts of former Yugoslavia through a military coup took over power
in Bosanski Samac, a very important strategic point for Serbs. After
occupation of the city the Serb authorities carried out a "terror
campaign," which compelled the majority of Croat and Muslim locals to
leave the area. Those who failed to escape on time, were rounded up,
arrested and confined in detention camps. Among theme there were many
leading personalities, experts and businessmen.They were under
surveillance of prison guards all the time. They were tortured, sexually
harassed, brutally treated and killed. Members of the Serbian
paramilitary units were permitted to enter the camp and to kill and
harass prisoners. Serbs moved into houses of Croats and Bosniaks taken
to forced labour. In 1991 of 33,000 inhabitants of Bosanski Samac,
17,000 thousand were Bosniaks and Croats. In the late May 1995 there
were less than 3,000 Croats and Bosniaks in the town. Moreover they were
forced to wear white bands around their arms to indicate their non-Serb
origin. President of the crisis headquarters in Bosanski Samac was
Blagoje Simic, the executive authorities were headed by Milan Simic and
Stevan Todorovic commanded the police."
Stevan Todorovic is charged with persecution of Croats
and Bosniaks of Bosanki Samac on national, racial and religious grounds;
crimes against humanity-murder, torture, unlawful detention, forced
labour, deportation and extraction of confessions. He was also charged
with taking part in murder of Ante Brandic, inflicting serious injuries
to Enver Ibralic, Omer Nalic, Joza Puskaric, Hasan Jasarevic and
Silvester Antunovic (who became paralyzed after being beaten up by a
heavy rod.) Todorovic also faces the count of willful torture, since he
three times in a row forced six people to engage in fellatio in presence
of other prisoners and guards.
Although Todorovic was arrested in September 1998, the
Hague Tribunal is yet to institute proceedings against him. Todorovic's
lawyers maintained that he had to be released for having been arrested
in an unlawful way by the SFOR soldiers. It took the Tribunal's Appeals
Chamber two years to solve this procedurally and legally very
complicated case. But it was solved on 13 December 2000 when Todorovic
unexpectedly confessed the crimes he had been indicted with. Graham
Blewitt, Deputy Prosecutor, stated that after several month- long
negotiations the defense and prosecution reached a deal on the basis of
which Todorovic confessed his crimes and stopped contesting the manner
of arrest. It was agreed that the defense and prosecution would suggest
a sentence ranging between 5 and 12 years of prison. Although this deal
at a cursory glance does not seem just because Todorovic was charged
with serious crimes, it is assumed that in exchange for a relatively
lenient sentence Todorovic divulged information on the role of the top
Belgrade leadership in crimes and development in Bosanski Samac and in
Bosnia and Herzegovina.
b. Trial of Dragan Nikolic "Yankee"
Dragan Nikolic, nicknamed Yankee, one of the Bosnian
Serbs indicted for crimes against humanity committed in the territory of
Bosnia and Herzegovina, was arrested on 21 April 2000, on the basis of
indictment-joinder of accused- against him, Ratko Mladic, Radovan
Karadzic and Ranko Cesic.
According to the first public and official indictment
of the Hague Tribunal of 11 April 1994, and expanded in 1995 and 1998,
Nikolic was charged on 80 counts, namely for committing war crimes in
his capacity of commander of camp Susica in the vicinity of Vlasenica.
He was charged with serious violations of the Geneva Conventions, crimes
against humanity, and participation in murder of over 500 Bosniaks ( a
total of 8,000 Bosniaks were detained in camp Susica). Nikolic also
faced charges of persecution of Bosniaks on political, national and
religious grounds, and was held accountable for the death of 6
prisoners, and rape and sexual harassment of Bosniak women in camp
Susica. Male inmates were constantly torture and harassed, and women
sexually harassed and raped by camp guards and other men permitted to
enter the camp. According to the indictment Nikolic, as the camp's
commander was also responsible for the misconduct of his subordinates.
3. Position of domestic judiciary on war crimes
Trial of 9 persons involved in abduction of Stevan
Todorovic began in the Uzice District Court on 5 December 2000.
According to the indictment in the early morning hours of 27 September
1998 they abducted Stevan Todorovic in Zlatibor village Rudine for a
50,000 dollar award and handed him over to the SFOR soldiers. According
to the indictment they committed a criminal offense under Article 125 of
the Penal Code of the FRY ("Who causes and explosion or fire or
undertakes any generally dangerous action or act of violence to create a
feeling of insecurity among citizens and undermine constitutional order
or security of the FRY, shall be punished by a prison sentence of at
least three years)
Trial Chamber of the Uzice District Court on 11
December 2000 sentenced the accused to a total of 45 years in prison.
The Chamber dismissed the prosecutor's qualification that this was not a
criminal offence of terrorism, but a criminal offence of abduction under
article 64 of the Penal Code of the Republic of Serbia. For the said
abduction Ignjatije Popovic (at large) was sentenced to 7 years in
prison, Milan Popovic to 7 years, DJordje Maksimovic to 6 years, Zivko
Odabasic to 8 years and 6 months in prison, Radoje Herakovic to 4 years
and 11 months, Branko Zivkovic to 6 years, DJura Dragovic to 4 years and
7 months (assistance in abduction), Dragan Zivkovic to 18 months (for
hiding a stolen Todorovic's car) and Nebojsa Suvajdzic to 6 months in
prison (illegal possession of Todorovic's pistol). Defense counsels
reacted by saying that "such harsh sentences delivered to their clients
were related to Yugoslavia's fulfillment of its Dayton Accord
committments." Presiding judge Milivoje Jovicic dismissed that
qualification by stating that "the FRY has already announced that the
war crimes suspects shall stand trial in the county in lieu of being
extradited to the Hague Tribunal." The judge probably had on mind
oft-quoted statements of Vojislav Kostunica, the FRY President.
Almost identical were the proceedings instituted
against abductors of Dragan Nikolic "Yankee." In mid-May police arrested
9 men on suspicion that "in the early morning hours of 21 April 2000
they abducted Drago Nikolic in the territory of Serbia and handed him
over to SFOR in Bosnia, for his further extradition to the Hague." The
Smederevo District Public Prosecutor qualified that action as a criminal
offense of terrorism (article 125 of the FRY Penal Code). After the main
hearing, held between 24 October-24 November, the trial chamber of the
Smederevo District Court pronounced the following sentences for
commission of the criminal offense of abduction under article 64 of the
Penal Code of Serbia: Amir Morenkovic (sentenced in absentia) -6 years
in prison, Branko Stupar, Zeljko Mitrovic, Goran Dimitrijevic-three
years in prison each, Zivorad Trajkovic-three years and four months,
Jadranka Kovacevic-2 years and 6 months, Slavoljub Antunovic -6 months,
while Miroljub Vasic and Boris Nestorovic were cleared of charges.
Criminal proceedings against Todorovic's and Nikolic's
abductors indirectly speak of the line taken by both old and new
authorities, that is "their" judiciary, on the Hague Tribunal. The
course of proceedings and the publicity given to those trails indicated
underyling political motives. This is best demonstrated by the fact that
the public prosecutor and his associates (representatives of the state)
adhered to their terrorism charges under article 125 of the FRY Penal
Code. In other words the state considered that the abduction "threatened
constitutional order and security of the FRY." Regardless of amended
qualification of the offence (abduction), both courts manifested their
political position through harsh sentences, notably in Todorovic's case.
However partiality, inadequacy and dependence on
political structures of the Serbian judiciary is best illustrated by
criminal proceedings instituted against Yugoslav reservists Nenad
Stankovic, Tomica Jovic and the YA Captain Dragisa Petrovic by the Trial
Chamber of the Military Court in Nis. All three were charged with murder
of Albanian civilians during the NATO intervention. The 20 December 2000
ruling determined that Dragisa Petrovic, as a batallion commander on 28
March 1999 ordered Stankovic and Jovic to kill two old men, Feriz and
Rukija Krasnici from Gornja Susica in Kosovo, for resisting the YA
command that all Albanians vacate the village. In executing the
commander's order Jovic gunned down Feriz Krasnici in the courtyard of
his house, while Stamenkovic gunned down Rukija Krasnici in his house.
On further orders they cremated the bodies and then buried them. The
aforementioned criminal offense under article 47 of the Penal Code of
Serbia was qualified as "ordinary" murder by the prosecutor and court.
Nenad Stamenkovic and Jovica Tomic were sentenced to 4 years and six
months respectively (the maximum sentence for that offense is 5 years),
and Dragisa Petrovic for instigation of that murder was sentenced to 4
years and 10 months imprisonment. Although the murder had all elements
of a criminal offense of war crime against civilian population , under
article 142 of the FRY Penal Code, which entails maximum prison sentence
of 20 years, the court ruled otherwise. Such a lenient sentence was thus
justified by the presiding judge, Colonel Radenko Miladinovic "convicted
persons should be free and united with their families until the sentence
becomes final."
Colaric case
Damir Colaric, a Serb policeman, member of units
deployed in Kosovo from June 1998 to June 1999, was arrested by the
Pristina police on 1 September 2000, and then transferred to Nis. He was
arrested as a suspected spy, for having collaborated with KFOR, UNMIK
and the Hague Tribunal investigators. The police stated that Colaric
planned to inform the aforementioned organizations of locations of mass
graves, and commanders of the police actions in areas of Drenica,
Malisevo and Podujevo in exchange for a new identity, travel documents
and a safe heaven in a Western country, to await for trials of the
Kosovo war crimes suspects.
Colaric was remanded in custody for three days under
article 196 of the Act on Criminal Proceedings (that article was later
assessed as unconstitutional ) on the basis of the Pristina police
decision. Although public prosecutor applied for an investigation as
early as on 4 September 2000, and suggested that Colaric be detained,
Colaric was interrogated by the investigative judge only on 7 September
2000, when the order for his detention was also made.
It is reasonably believed that Colaric in 14 March-15
August 2000 period disclosed to members of intelligence services of NATO
member-countries confidential official data on the Serbian police
activities and operations in February 1998-June 1999 period in the area
of Pristina, Podujevo, Glogovac and Urosevac, on locations of alleged
mass graves in the aforesaid areas, the command structure or chain of
command of the deployed units, which was tantamount to his commission of
a criminal offense of espionage under article 128, paragraph 1 of the
FRY penal Code. On orders of the public prosecutor, investigative judge
Danica Marinkovic during investigation was supposed to interrogate the
accused, obtain evidence on his activities within the police unit and
other evidence for establishing criminal responsibility of the accused.
During his three-month long detention (Colaric was released on 1
December) the accused was only interrogated (on 7 September) once by the
public prosecutor, who, among other things, asked him whether he was of
Serb origins. Despite failing to carry out full investigation, judge
Marinkovic suggested to the Supreme Court to extend detention to
Colaric, in view of "uncompleted investigation and the need to first
find and then hear witnesses from Kosovo Polje." Detention was to be
extended for the very reason it was determined in the first place,
namely "the fear that the indictee if released would influence witnesses
and hinder the investigation (article 191, paragraph 2, point 2 of the
Act on Criminal Proceedings) " or "the nature of the criminal offence
which entails ten years in prison or even a harsher sentence and may
disturb citizens and their security because of the manner of its
commission, consequences thereof and other circumstances," under article
191, paragraph 2, point 4 of the Act on Criminal Proceedings). But the
Supreme Court on 27 November 2000 rejected an application for extension
of custody on the following grounds: "indictee cannot hinder
investigation by influencing witnesses in Kosovo Polje whose finding is
still uncertain" and "there are no evident reasons that the release of
the accused would lead to disturbance of citizens."
Although Colaric was released , criminal proceedings
against him have not been suspended. Possible sentencing of Colaric for
"assistance in unveiling the Kosovo war crimes and perpetrators thereof
shall indicate willingness of the new authorities to bring to justice
war criminals and to co-operate with the Hague Tribunal."
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